Bombay High Court
Jankiram Baburao Patil And Others vs Late Waman Sitaram Mahajan Thro. ... on 8 November, 2023
Bench: S. G. Mehare
2023:BHC-AUG:24551
1 41-CA.13867-15 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.13867 OF 2015
IN SAST/9590/2015 WITH CA/13873/2015 IN
SAST/9590/2015 WITH WP/1540/2016 WITH SA/45/2021
WITH CA/1295/2021 IN SA/45/2021
JANKIRAM BABURAO PATIL
VERSUS
PANDURANG RAJARAM PATIL AND OTHERS
...
Advocate for Applicant : Mr. Bhokarikar Madhav M.
Advocate for respective Respondents : Mr. A. J. Patil.
...
CORAM : S. G. MEHARE, J.
DATE : 08.11.2023
PER COURT :-
1. Heard the learned counsel for the applicant and the
learned counsel for the respondents.
2. The applicant was the plaintiff before the Trial Court and
the appellant before the First Appellate Court. His suit and
appeals were dismissed. Thereafter, he preferred the present
appeal with an application for condonation of delay of 3420
days.
3. Learned counsel for the applicant would submit that the
applicant was unaware of the impugned judgment and decree
of the First Appellate Court. He would submit that there were
many litigations pending. Those litigations had the effect on
2 41-CA.13867-15 & ors.odt
the issues involved in the appeal; he wanted to prefer. Nothing
has been pleaded in the application as argued. In the
application, it has been simply pleaded that "he is not educated
considering the legal rights and almost illiterate in the light of
Court litigation having no knowledge about the punctuality of
rights and norms of litigation and court matters. The suit was
dismissed without proper hearing of the applicant and
opportunity of adducing the evidence to them."
4. To bolster his argument, he relied on the case of Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur
Nafar Academy and others ; 2013 AIR SCW 6158.
5. Per contra, the contesting respondent has strongly
opposed the application. He would submit that the reasons
assigned for delay are neither genuine nor plausible. The
applicant was the appellant. Hence, it is hard to digest that he
had no knowledge about passing the judgment of the First
Appellate Court. He has prayed to dismiss the application.
6. This is an application under Section 5 of the Limitation
Act. Section 5 of that Act, which prescribes that the delay may
be condoned for the 'sufficient cause'. The burden was on the
applicant to prove that there were sufficient causes that
restrained him from preferring the appeal. In the case at hand,
3 41-CA.13867-15 & ors.odt
there was a delay of more than nine years. He had a case that
there were litigations going on. It seems that he was aware of
his rights. If he was aware of his rights, his contention that he
was illiterate in the light of court litigation appears incorrect.
The ground raised by him that the suit was dismissed without
proper hearing an opportunity of adducing evidence is not the
ground for condonation of delay.
7. In Esha Bhattacharjee (cited supra), the principles have
been culled out for considering the application under Section 5
of the Limitation Act. One of the principle culled out, the term
"sufficient cause" should be understood in their proper spirit,
philosophy and purpose regard being had to the fact that these
terms are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation. It has also been
culled out that substantial justice being paramount and pivotal,
the technical considerations should not be given undue and
uncalled for emphasis. No presumption can be attached to
deliberate causation of delay but, gross negligence on the part
of the litigant is to be taken note of.
8. One of the principle of gross negligence on the part of
the litigant is to be considered in this Case. The person, who
was litigating was supposed to be a deligent. He woke up after
4 41-CA.13867-15 & ors.odt
around 9 years. He did not establish sufficient cause to prove
that he was restrained from preferring the appeal in the Court
in prescribed period of limitation. In the peculiar facts and
circumstances of the case, the relevant principles culled out in
Esha Bhattacharjee (cited supra) are applicable. After having
gone through the contents of application, there is no iota of
pleading what restrained him from preferring appeal in time.
The reasons pleaded in the application were not the sufficient
cause.
9. For the reasons mentioned above, the Civil Application
No.13867 of 2015 for condonation of delay stands dismissed,
Civil Application No.13873 of 2015 for stay and the Second
Appeal on Stamp stand disposed of accordingly.
10. No order as to costs.
11. List the writ petition, other civil application in other
second appeal for admission on 23.01.2024.
(S. G. MEHARE, J.)
...
vmk/-
